Tarelli &Langley (No 2)
[2024] FedCFamC1F 163
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarelli &Langley (No 2) [2024] FedCFamC1F 163
File number(s): PAC 4311 of 2014 Judgment of: BERMAN J Date of judgment: 28 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Circumstances justifying order – Where the father seeks costs – Where the mother did not attend the hearing and sought an adjournment – Adjournment application in an incompetent form – Where the cost application will not take the mother by surprise – Where the mother’s opposition to the orders is wholly unsuccessful – Cost order made. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Buljubasic v Buljubasic (1999) FLC 92-865
Tarelli & Langley [2023] FedCFamC1F 386
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 27 & 28 February 2024 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: F W Ewart & Ewart Counsel for the Respondent: The Respondent did not appear ORDERS
PAC 4311 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TARELLI
Applicant
AND: MS LANGLEY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to Rule 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders made by the Honourable Justice Berman on 18 May 2023 be amended by adding to paragraph 1, the following:
(a)"In addition to the foregoing, the mother shall pay to the Trust Account of F W Ewart & Ewart for and on behalf of Mr Tarelli ("the father") the sum of $9,251.32, being the amount owed by the father to BZ Council, and the sum of $3,915.97, being the amount currently owed to Sydney Water, making a total of $13,167.29 to be added to the sum of $51,308.00 ("the settlement sum") (totalling the sum of $64,475.29) (“the new settlement sum”) be paid within 90 days of the 27th November 2023."
THE COURT FURTHER ORDERS THAT:
2.The respondent pay to the applicant costs assessed in the sum of FOUR THOUSAND EIGHT HUNDRED AND SIXTY SIX DOLLARS AND NINETY SEVEN CENTS ($4,866.97) including GST within 60 days of the date of this order.
3.The Applications in a Proceeding filed 26 February 2024 and 27 February 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Berman J
INTRODUCTION AND BACKGROUND
Before the Court is an Application in a Proceeding filed by Mr Tarelli (“the applicant”) seeking an order that pursuant to rule 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”), paragraph 1 of the orders made by me on 18 May 2023 (“the final orders”) be amended by adding the following:
in addition to the foregoing the mother shall pay to the trust account of F W Ewart & Ewart for and on behalf of [Mr Tarelli] (“the applicant”) the further sum of $9,251.32 being the amount owed by the applicant to [BZ Council] and also the sum of $3,915.97 being the amount currently owed to Sydney Water making a total of $13,167.29 and that both amounts namely, the sum of $51,308 (“the settlement sum”) together with the amount of $13,167.29 be paid within 90 days of 27 November 2023 being the date upon which the stay dated 6 July 2003 ceased to be enforced by reason of the orders made by the Full Court being delivered such that the purpose of the said stay had been fulfilled.
In addition, the applicant also seeks costs assessed in the sum of $3,300 inclusive of GST.
The application first came before me on 14 February 2024. On that date, Ms Langley (“the respondent”) appeared as a self-represented litigant.
The issues surrounding the application, and the basis for the order sought by the applicant, that proposed that an amendment be made pursuant to r 10.13(h) of the Family Law Rules, was the subject of considerable discussion. Ultimately, I was persuaded by the respondent’s submission that there should be a relatively short adjournment to enable her to seek legal advice and then representation. The respondent submitted that she was opposed to the “slip rule” amendment as sought by the applicant.
It is noted that one of the reasons given by the respondent in support of her oral application to seek an adjournment was that she considered herself distracted by the work needing to be done in order to pursue her application for special leave to the High Court of Australia following the dismissal of her appeal by the Full Court on 27 November 2023 which related to the final orders made by me on 18 May 2023.
The respondent did not appear at the hearing on 28 February 2024. There is some history that is required to give context to the respondent’s non-attendance.
On 21 February 2024, I adjourned the respondent’s Application in a Proceeding for further hearing to 27 February 2024. The respondent did not appear on that occasion. I gave extensive reasons as to how the matter was to proceed in circumstances where the respondent did not engage legal representation nor seek or request that the Court make arrangements for her to attend the hearing remotely. It is accepted that if the respondent was either not able to attend court personally, she could attend remotely or instruct a solicitor. The Court would have readily acceded to such an application.
By Application in a Proceeding filed 27 February 2024, the respondent sought an adjournment due to illness. The Application in a Proceeding was supported by the respondent’s affidavit which annexed a medical certificate from the CB Clinic. The certificate indicated that the respondent had attended the surgery in early 2024 and without more expansive reasons advised that she was suffering from a medical condition. The summary indicated that the respondent would be unfit to attend court from 20 February 2024 to 27 February 2024.
With some misgivings, I exceeded to the matter being adjourned until 28 February 2024. Counsel appearing for the applicant did not oppose a short adjournment and the medical certificate indicated that the respondent would only be unfit to attend court due to her medical issues until 27 February 2024.
As part of the matters discussed with counsel on 27 February 2024, the issue of the applicant’s costs was considered. I indicated to counsel that this was a matter that had been before the Court since 2014, the matter had proceeded to three final hearings and the respondent had taken my reasons for judgment and orders made to the Full Court. On 2 January 2024, the respondent then filed an application to the High Court seeking special leave. That application has not yet been heard and determined.
On 13 February 2024, the respondent filed an Application in an Appeal, which came before Harper J on 21 February 2024. The reasons for judgment are of assistance and indicate that his Honour considered the respondent had filed, in an incompetent form, an application to adjourn her stay application on the basis of illness. It is reasonable to assume that the medical circumstances that were set out in the medical certificate filed by the respondent before me were the same medical circumstances that was considered by his Honour. Importantly, his Honour considered that there was no appearance by the respondent and no application was made in an appropriate form for her to appear electronically. Whilst ultimately his Honour did not find merit in the application for the stay of the orders of the Full Court, the significant observation is that his Honour was satisfied that the matter should be heard and determined in the absence of the respondent.
The circumstances before me today are not dissimilar. The respondent does not appear and there is no explanation as to her absence. I am satisfied that the respondent is aware of the proceedings, cognisant of the issues and would have an understanding, given her history as a legal practitioner and counsel, as to what is required for an application for an adjournment of proceedings to be properly heard and determined.
On 27 February 2024, the applicant filed a further Application in a Proceeding seeking an adjournment of the proceedings, again supported by an affidavit of the same date. This time, there is a further medical certificate from Dr CD of the CB Clinic certifying that the respondent had attended on 27 February 2024 and that she was now suffering from a medical condition, but no longer medical condition . Again, the proposition is that the respondent would be unable to attend court for a period from 28 February 2024 to 1 March 2024.
I do not consider that the application is in a competent form. It should not be assumed that the mere filing of process in this Court will have the inevitable consequence of securing either a stay or an adjournment of proceedings. Particularly, in proceedings that have been before the Court since 2014.
Whilst I do not propose to repeat the lengthy reasons given by me yesterday, I remind the respondent of the reference to the Full Court’s decision of Buljubasic v Buljubasic (1999) FLC 92-865 (“Buljubasic”). In that decision, the Full Court considered that it was improper for litigants to seek to communicate with a trial judge by sending a facsimile or other communication to the court or a registrar and that if a litigant seeks an adjournment or an extension of time, then either they must appear in court or send a representative to make a proper application for relief sought. In the 25 years that have passed since the decision of Buljubasic (supra), there is a further option namely, that an application can be made for the respondent to appear remotely.
Whilst I have no doubt that the medical certificate was properly obtained, what is not clear from the certificate are the circumstances of the respondent, namely, as to whether she was not able, by reason of ill health, to instruct a solicitor to represent her, or if not able to appear personally then remotely.
If a party seeks to repeatedly adjourn proceedings, then taking into account the complex history of the matter and noting the decision of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, it is important that all that can be reasonably done to explain to the Court the parameters of the impediment that would support the adjournment of proceedings. It is not simply the reason for the adjournment that is enough, but also when the matter can be heard and determined. In this case, it could not be said that the respondent does not have a knowledge of the issues that underly the filing of the application. I am satisfied that the respondent had notice of the proposed orders sought by the applicant prior to receiving the application and affidavit in support.
There has been a considerable delay from the date of judgment to the present date. That delay is as a result of the respondent exercising her entitlement to file an appeal and for it to be heard and determined. As matters transpired, the Full Court heard the respondent’s appeal expeditiously. The fact that the respondent considers that the matter has not yet resolved pending her application to the High Court for special leave, is not a reason why there should be a further adjournment. The order for stay was pending the resolution of the decision of the Full Court.
The dismissal of the appeal reinvigorated the obligations on each of the parties in respect of the orders, in particular, those relating to settlement of property. I am told, and I accept, that the 90 days allowed in the final orders for the payment of the settlement sum of $51,308, whilst suspended during the currency of the appeal process, is now at an end. The consequence is that the payment of the settlement sum to the applicant can now be enforced.
There is therefore some reasonable urgency to the resolution of this interim application because it would be preferable for all outstanding matters to be resolved.
Property settlement and parenting arrangements were dealt with in my judgment of Tarelli & Langley [2023] FedCFamC1F 386. Paragraph 326 says as follows:-
The [respondent] will refinance the mortgage and pay out the outstanding council and water rates to the exoneration of the [applicant]. If she is unable to refinance, the [respondent] concedes the [Suburb C] property is to be sold.
It was not controversial that the Suburb C property, for various reasons that do not now need to be restated, was placed in the name of the applicant even though at all material times, the respondent resided in the property. It was always understood that the respondent wished to retain the property because it had been purchased by a combination of funds provided by the respondent and her mother. At all reasonable times during which the council rates and water rates were incurred, the respondent was in sole occupation of the Suburb C property.
During the course of the proceedings, it was understood that there were outstanding council and water rates and that there was no contention or argument during the course of the hearing that in some way, notwithstanding that the respondent resided in the property, she ought not be responsible for the outstanding rates.
The applicant complains that whilst I dealt with the settlement sum, I did not bring to account my clear intention as set out in paragraph 326.
Rule 10.13 of the Family Law Rules provides as follows:
(1) The court may at any time vary or set aside an order if –
…
(e) it does not reflect the intention of the court; or
(h) there is an error arising in the order from an accidental slip or omission.
I am satisfied that there either has been an accidental slip or omission or, indeed, that the current order requiring the sum of $51,308 being the settlement sum, did not properly reflect the intention of the Court in respect of the council rates and water rates. The evidence before me in the final hearing was such that the respondent could not be taken by surprise that the applicant now seeks the additional amounts.
In those circumstances, I consider that there is merit in the orders sought by the applicant and further I also give consideration to whether what is being sought falls into the category of a substantive or mechanical alteration. I do not consider it substantial in circumstances where the issue was live during the course of the proceedings, and it was understood that there would be an order requiring the respondent to pay the outstanding rates to Sydney Water and BZ Council. The fact that the order was ultimately not made is as a result of an error on my part in not properly reflecting the intention of the Court or in the alternative, can be seen as an accidental slip or omission. For those reasons I propose to make an order in terms of paragraph 1 of the application in a proceeding. The orders delivered on 18 May 2023 will need to be changed by way of an appropriate amendment.
COSTS
The applicant seeks an order for costs. The application does not take the respondent by surprise in circumstances where in the Application in a Proceeding filed 30 January 2024, the respondent sought an order for costs to be assessed in the sum of $3,300 inclusive of GST. At the hearing on 27 February 2024, I indicated that because of the nature of the matter, the concern I had as to the extensive costs already incurred and the potential for the costs of the proceedings to overwhelm the subject matter, I would be assisted by the preparation of a costs schedule.
After some discussion with counsel, an indication was given that the applicant’s costs would be assessed on a party-party basis and not indemnity or solicitor-client basis. I propose to deal with the matter on that basis even though I do not ignore the extent of costs generally in legal proceedings, the deleterious consequence it can have on each of the parties and the almost inevitably shortfall between solicitor-client costs and party-party costs.
There is an argument to suggest that a where a party does not attend the proceedings, produces documents without seeking that she be represented and does not pursue and explore all reasonable avenues so that she can participate and engage in the proceedings, a costs order is likely to be made. There is scant evidence that the conduct of the respondent can be explained by reason of her health considerations. I do not ignore that the respondent is in the unique position of having been a practicing legal practitioner and counsel. I also bring to account my knowledge of the matter over a number of years, the unfortunate circumstances that have occurred, and the concern I have that at some aspect the respondent may present with a psychiatric component.
The applicant now seeks that if a costs order is to be made then it be assessed on a party-party basis. In that regard, Exhibit-1 is a covering letter from the applicant’s solicitors to the respondent dated 27 February 2024 enclosing an itemised schedule of costs totalling $4,866.97 including GST. I make the initial comment that it appears to be a modest sum and not so significantly different to the amount sought in the Application in a Proceeding that in some way the respondent would be taken by surprise. The respondent is aware of the application for costs and whilst it may be that the current amount sought is not necessarily the needle, it certainly represents the haystack.
I am obliged to consider s 117 of the Family Law Act 1975 (Cth) (“the Act”), and I bring to account s 117(1) of the Act which provides that each party to a proceeding shall bear his or her own costs. I also consider s 117(2) of the Act, which sets out that there may be circumstances that would justify the Court in considering whether to make an order for costs. If so, then s 117(2A) of the Act informs as to the matters that should be brought to account and considered.
I am in a position to consider the financial circumstances of each of the parties to the proceedings. Whilst I have not received update or recent Financial Statements, there is other information that would be sufficient to determine whether the amount now sought by the applicant should be ordered.
The applicant continues in employment as a trades person and is entitled to receive the settlement sum either from the respondent if she wishes to retain the property or from the net sale of the proceeds of the Suburb C property as may be payable in default.
The respondent does not currently work, has significant support from her mother, but is also able to retain the overwhelming value in the Suburb C property. I do not consider that the financial circumstances of each of the parties would be, in this case, a relevant consideration and certainly not a barrier to an order of costs being made.
Neither of the parties were in receipt of legal aid.
Conduct is possibly a relevant consideration in this case, namely the various adjourned hearings that have come about because of the respondent did not attend court, but chose to file an Application in a Proceeding.
There has not been a failure of a party to the proceeding to comply with previous orders of the court. What appears to be a relevant consideration is s 117(2A)(e) of the Act which provides for the making of a costs order where a party has been wholly unsuccessful. Section 117(2A)(g) of the Act also has application.
I find that the respondent’s opposition to the orders sought by the applicant is wholly unsuccessful.
There was no evidence presented by the respondent that gave any indication as to why she should not be responsible for council rates and water rates given her occupation of the Suburb C premises at all material times.
I am satisfied that an order for costs should be made.
In considering the quantum of costs, I have given careful consideration to the schedule of costs as provided for the period 16 January 2024 to 27 February 2024. The items that comprise the bill of costs are reasonable and appropriate in the circumstances. The quantum of costs as sought is modest.
I make orders that appear at the commencement of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 18 March 2024